His Excellency Ayatollah Mahmoud Hashemi Shahroudi
Ministry of Justice,
Park-e Shahr
Tehran
Islamic Republic of Iran

25 February 2008

Dear Minister,

Re: Execution by stoning of sisters Zoreh and Azar Kabiri-niat

We are writing on behalf of the Human Rights Institute of the International Bar Association (IBAHRI) in connection with the proposed execution of Zoreh and Azar Kabiri-niat.

In its role as a dual membership organisation, comprising 30,000 individual lawyers and over 195 Bar Associations and Law Societies, the IBA influences the development of international law reform and shapes the future of the legal profession. Its member organisations cover all continents. The IBA’s Human Rights Institute works across the association, helping to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
We understand that Zoreh and Azar Kabiri-niat were arrested on 4 July 2006 and charged with having illicit relations. The two sisters, as well as three other individuals, were found guilty of illicit relations after a trial in March 2007 and sentenced to flogging. Zoreh Kabiri-niat was also sentenced to five years in prison for allegedly ‘forming a centre of corruption’. 

Reports received by the IBAHRI indicate that after the floggings had been carried out, new charges relating to the same incident were brought against Zoreh and Azar for ‘committing adultery while being married’. After a second trial relating to this incident in August 2007, the two women were found guilty of committing adultery and sentenced to death by stoning. Both girls have denied the offence, however the guilty verdict is reportedly attributed, in part, to the judge’s ‘knowledge’ of their guilt based on statements made by Zoreh and Azar whilst under interrogation.

An appeal was lodged on behalf of Zoreh and Azar on the grounds that both women denied the offence and Islamic law requires a confession of adultery by the accused, four times before the judge. Both women claim such a confession never occurred. The appeal was rejected by the Supreme Court judges, who confirmed the verdict of death by stoning. Zoreh and Azar’s lawyer has argued that the case and appeal were flawed on the grounds that a person cannot be tried and sentenced twice for the same crime; that the circumstances required to find someone guilty of adultery under Islamic law had not been proven; and that there are no legal grounds to impose a sentence of death by stoning.
We are therefore concerned that the passing of this sentence may be in contravention of Iran’s obligations under domestic and international law.

Under Article 14 of the International Covenant of Civil and Political Rights (ICCPR) to which Iran is a state party, no one shall be tried or punished again for an offence for which he has already been finally convicted. Further, everyone convicted of a crime has the right to his conviction and sentence being reviewed by a higher tribunal according to law. Under Article 6 of the ICCPR it is also stipulated that, where the death penalty is imposed, certain procedural guarantees must be observed. These include the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal. Furthermore, the Economic and Social Council’s Safeguards Guaranteeing Protection of the Rights of those facing the Death Penalty, endorsed by the UN General Assembly in 1984, upholds that punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts. If the reports received by the IBAHRI are correct, we are concerned that the guilty verdict in this case may not have been based on conclusive evidence and may be in breach of international standards relating to a fair trial.

Furthermore, whilst States are not required to abolish the death penalty, they are obliged to limit its use. The United Nations Human Rights Committee General Comments on Article 6 of the ICCPR uphold that states are obliged to abolish the death penalty for all ‘other than the most serious crimes’. The UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has stated that the death penalty should be eliminated for actions relating to moral crimes such as adultery and the UN Commission on Human Rights has stated that it should not be imposed for non-violent acts such as sexual relations between consenting adults.

With regard to the manner of execution, Iran's Penal Code dictates that when carrying out executions by stoning, the stones are large enough to cause pain, but not large enough to kill the victim immediately. Article 104 states that, with regard to the penalty for adultery, the stones used should ‘not be large enough to kill the person by one or two strikes; nor should they be so small that they could not be defined as stones’. It also prescribes that women should be buried up to their breasts.

It has been argued that executions of this nature contravene the right to freedom from cruel, inhuman and other degrading treatment. Article 9 of the Safeguards Guaranteeing Protection of the Rights of those facing the Death Penalty states that, where capital punishment occurs, it shall be carried out so as to inflict the minimum possible suffering and any application of particularly cruel or inhuman means of execution, such as stoning, should be stopped immediately. In 2002, the head of the Iranian judiciary, Ayatollah Shahroudi, ordered a moratorium on execution by stoning. It is reported that the first executions by stoning since this moratorium was introduced were carried out in July 2006 and July 2007, respectively, and were subsequently dismissed as ‘a mistake’ by the Iranian authorities.

If the death sentence is upheld, we would therefore like to remind you of the rights of Zoreh and Azar under Article 7 of the ICCPR and Article 5 of the Universal Declaration of Human Rights (UDHR) which specify that no one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment. Further, Article 38 of the Constitution of the Islamic Republic of Iran states that all forms of torture for the purpose of extracting confession or acquiring information is forbidden, compulsion of individuals to testify or confess is not permitted and any testimony or confession obtained under duress is inadmissible. Article 14 of the ICCPR similarly maintains that Zoreh and Azar should not to be compelled to testify against themselves or to confess guilt.

As it appears that the trial in which the two girls were sentenced did not comply with the obligations laid out under Article 14 of the ICCPR then we would like to request that the sentence of death is overturned and Zoreh and Azar are retried in accordance with international standards. We would also like to receive your assurances that, if the sentence of death is upheld, it will be carried out so as to inflict the minimum possible suffering and will not be carried out in public or in any other degrading manner. Finally we would like to draw your attention to UN Resolution 2005/95 which calls on all state parties to the ICCPR that have not yet done so to consider acceding to or ratifying the Second Optional Protocol to the Covenant, aiming at the abolition of the death penalty.

We would like to receive your assurances that our concerns will be investigated as a matter of urgency and that the rights of Zoreh and Azar Kabiri-niat will be upheld in accordance with the laws of Iran and Iran’s obligations under international law. We look forward to your urgent response.

Yours sincerely,

Justice Richard Goldstone
Ambassador Emilio Cárdenas
Human Rights Institute Co-chairs

CC:   Ayatollah Sayed ‘Ali Khamenei, Leader of the Islamic Republic of Iran
        H.E. Mr Rasoul Movahedian, Embassy of the Islamic Republic of Iran